Fahey v The Queen - [2014] NZCA 465

IN THE COURT OF APPEAL OF NEW ZEALAND

CA177/2014
[2014] NZCA 465

BETWEEN	GRENVILLE KOOKIE FAHEY Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2014
Court:	Ellen France P, Asher and Clifford JJ
Counsel:	Appellant in person H W Ebersohn for Respondent
Judgment:	24 September 2014 at 4.30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Grenville Kookie Fahey pleaded guilty in the District Court at Auckland on 25 July 2013 to one count of assault with a weapon and one count of threatening to kill. On 2 April 2014, some seven months out of time, Mr Fahey filed a notice of appeal against his conviction and sentence. On this appeal, he appears for himself. He has filed a long, handwritten submission in support of granting an extension of time and his appeal in general.
In his application for an extension of time for filing the appeal, Mr Fahey stated:
I always intended to appeal the conviction. I had taken steps to prepare an appeal. I was arrested on 4 September 2013 and have been in custody since.
We are prepared to consider this appeal on the merits and grant an extension.
His notice of appeal sets out the following ground supporting the appeal against his conviction:
I pleaded guilty without legal representation. I wished to defend the charge but I was put under pressure to plead guilty.
The situations in which appeals against conviction may be pursued after entry of a guilty plea are circumscribed. This Court in R v Merrilees described those situations as exceptional stating:[1]
It has to be shown a miscarriage of justice will result if a conviction is not overturned, and where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction cannot be impugned.
[1]R v Merrilees [2009] NZCA 59 at [33].
The Court cited from R v Le Page where it was said a miscarriage will be indicated in three broad situations, namely:[2]
[17]     … The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element. …
[18]     A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. …
[19]     The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.
[2]R v Le Page [2005] 2 NZLR 845 (CA).
The Court in Merrilees indicated that there would be a fourth situation, that is:[3]
… where trial counsel errs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fahey v The Queen

Details

AGLC: Fahey v The Queen [2014] NZCA 465
Case: [2014] NZCA 465
Decision Date: 24 September 2014 at 4.30 pm

CaseChat Overview and Summary

Grenville Fahey, the appellant, challenged his conviction and sentence in the Court of Appeal of New Zealand. The respondent was the Crown. The appellant pleaded guilty to assault with a weapon and threatening to kill but now sought to appeal against his conviction. The appellant argued that he had been pressured to plead guilty and that he had not been legally represented when he pleaded guilty. The Court was required to determine whether the appeal against the conviction could proceed and, if so, whether the appeal had merit. The Court noted that appeals against conviction following a guilty plea are exceptional and that such appeals may only be upheld in very limited circumstances. The Court concluded that the appeal did not fall within any of these circumstances and that the appellant had made a deliberate and informed decision to plead guilty. The Court granted the appellant leave to appeal out of time but dismissed the appeal on the merits. The appellant's sentence was within the appropriate range. The Court dismissed the appeal and denied leave to appeal out of time.

Orders